Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2012 ONFSCDRS 13

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BETWEEN:

ERIC MENSAH

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

Before: Robert Bujold

Heard: January 27, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Marko Djukic for Mazin Rooz Mazin Stephanie Zwicker-Slavens for Certas Direct Insurance Company Mr. Mensah did not appear

The Applicant, Eric Mensah, was injured in a motor vehicle accident on October 31, 2009. He applied for statutory accident benefits from Certas Direct Insurance Company (“Certas”).¹ Certas denied payment of certain benefits. The parties were unable to resolve their disputes through mediation, and Mr. Mensah applied for arbitration at the Financial Services Commission of Ontario (the “Commission”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

Background:

A pre-hearing discussion is this matter was initially scheduled for June 30, 2011 at 10:00 a.m. at the offices of the Commission. By letter dated June 8, 2011, the firm of Mazin Rooz Mazin (“MRM”) wrote to the Commission to request a date for a motion for an order permitting the firm to withdraw as Mr. Mensah’s representative. MRM subsequently served and filed a motion record in support of its request. The motion was made returnable at the pre-hearing discussion.

Mr. Mensah did not show up at the motion and pre-hearing discussion nor did he contact MRM or the Commission to advise that he would not be attending. After waiting 20 minutes, I had the case administrator call Mr. Mensah. He advised the case administrator that he could not attend because he was on his way to a job interview.

MRM’s motion was adjourned to October 7, 2011 at 10:00 a.m. to provide Mr. Mensah with a further opportunity to respond to its request to withdraw as his representative. However, one of the reasons for MRM’s motion to be removed as his representative was Mr. Mensah’s alleged failure to attend an examination arranged by Certas through MRM. According to MRM’s motion materials, Mr. Mensah cancelled the initial appointment on short notice, and ultimately refused to attend when the appointment was re-scheduled. In the circumstances, and to avoid possible further delay and expense, I scheduled the arbitration hearing for the same date and time as the motion. The issues for the hearing were identified as the issues set out in the Application for Arbitration and the Response by Insurer to an Application for Arbitration. However, with respect to the hearing, my letter to the parties of July 6, 2011 advised as follows:

Certas has been advised not to prepare for a contested hearing on October 7, 2011. In the event that Mr. Mensah attends on that date, the hearing will not proceed and the appointment will be converted into a pre-hearing discussion. However, in the event that Mr. Mensah does not attend, then, as noted above, the hearing may proceed in his absence. Mr. Mensah’s application for arbitration may be dismissed and Certas’ expenses of the arbitration proceeding may be awarded against him.

A Notice of Rescheduled Motion and a Notice of Hearing were sent to the parties by the case administrator, also on July 6, 2011.

Mr. Mensah subsequently advised that he would not be able to attend the motion and hearing (convertible to a pre-hearing) on October 7, 2011 and, as a result, the motion and hearing were rescheduled at his request to January 27, 2012 at 1:00 p.m. at the offices of the Commission.

I wrote to the parties on October 5, 2011 and again confirmed that the hearing would be converted to a pre-hearing discussion in the event that Mr. Mensah attended at the rescheduled appointment. But Mr. Mensah was also cautioned again that the hearing could proceed in his absence and his claims could be dismissed in the event that he did not attend.

A Notice of Second Rescheduled Motion and Notice of Second Rescheduled Hearing confirming the appointments were sent to the parties by the case administrator on October 12, 2011.

ISSUES:

The issue on the motion is:

Should Mazin Rooz Mazin be permitted to withdraw as Mr. Mensah’s representative?

The issues on the arbitration hearing are:

Is Mr. Mensah entitled to receive a weekly income replacement benefit in the amount of $400.00 per week from November 8, 2009 and ongoing?
Is Mr. Mensah entitled to receive a medical benefit in the amount of $14,442.63, representing the outstanding balance claimed owing for acupuncture, physical rehabilitation, education sessions, exercise and related services recommended by Osler Rehabilitation Centre from October 31, 2009 and ongoing?
Is Mr. Mensah entitled to attendant care benefits in the amount of $922.76 per month from October 31, 2009 and ongoing?
Is Mr. Mensah entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from October 31, 2009 and ongoing?
Is Mr. Mensah entitled to payment in the amount of $2,889.58, representing the outstanding balance claimed owing for the cost of examinations and related services recommended by Assessment Direct from October 31, 2009 and ongoing?
Is Certas liable to pay Mr. Mensah’s expenses in respect of the arbitration?
Is Mr. Mensah liable to pay Certas’s expenses in respect of the arbitration?
Is Mr. Mensah entitled to interest for the overdue payment of benefits?

Result:

Mazin Rooz Mazin is permitted to withdraw as Mr. Mensah’s representative.
Mr. Mensah’s application for arbitration is dismissed.

EVIDENCE AND ANALYSIS:

On January 27, 2012 at 1:00 p.m., Mr. Marko Djukic of MRM attended at the Commission to speak to his firm’s motion for an order permitting it to withdraw as Mr. Mensah’s representative. Ms. Stephanie Zwicker-Slavens attended on behalf of Certas to speak to the hearing (or pre-hearing, in the event that Mr. Mensah showed up).

By 1:20 p.m., Mr. Mensah had still not appeared at the Commission offices.

Rule 37.9 of the Dispute Resolution Practice Code (4th Edition) provides as follows:

Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party’s participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

Further to Rule 37.9, and being satisfied that Mr. Mensah had been properly served at his last known address with notice of both MRM’s motion and the arbitration hearing, both matters proceeded in his absence.

With respect to MRM’s motion, I was satisfied on the basis of affidavit materials filed that there had been a breakdown in the solicitor-client relationship between Mr. Mensah and MRM, and I permitted MRM to withdraw as Mr. Mensah’s representative.

Having granted MRM’s motion, the arbitration hearing then proceeded with Mr. Mensah unrepresented. As Mr. Mensah did not attend to present any evidence, he failed to establish his entitlement to the benefits claimed. Mr. Mensah’s claims were therefore dismissed.

EXPENSES:

Certas did not pursue its claim for expenses of the arbitration.

February 13, 2012

Robert Bujold Arbitrator

Date